Articles Posted in Blood Testing

Driving under the influence (DUI), or in Michigan Operating While Intoxicated (OWI), is usually charged using a breath test result. However, due to the recently discovered breath testing fraud, more often Michigan DUI cases are charged using a blood test result.  Breath test results are available immediately after the test is administered at the police station or jail. Blood sample results, however, can take weeks or months to be returned from the Michigan State Police (MSP) forensics lab. The prosecutor in a DUI case generally, but not always, waits for blood results to submit formal charges because if the result is over .08 then the case can be charged under Michigan’s Unlawful Blood Alcohol Level law.  And if the test result is above a .17, then it is considered a super-drunk driving.

What is the Process That My Blood Sample Goes Through?

If you have gone through a Michigan DUI arrest that involved a blood sample, you may have noticed that the police officer provided special vials to be used for the sample. These blood collection vials come from a kit that is specifically made for police agencies in Michigan to collect blood samples for criminal investigations. There should be two vials with grey caps. Sodium fluoride should be in the vials to properly preserve the blood. The vials are sent to the Michigan State Police forensics lab in Lansing for testing. Once tested, the results are sent back to the arresting agency, and the prosecutor for that agency.  The prosecutor will review the matter, and if appropriate, will file DUI charges against you in court. If the blood is being tested for alcohol only, the process usually takes three to six weeks. If it’s also being tested for drugs, it could take months. During the coronavirus pandemic, the results could take even longer to be returned.

Supreme Court to Rule: Can Unconscious Driver Consent to Blood Draw?

On January 11th the United States Supreme Court indicated that they would hear a case arising out of the state of Wisconsin involving the constitutionality of a warrantless blood draw from an unconscious person. The name of the case is Mitchell v. Wisconsin and the State Court’s opinion is found at State v. Mitchell, 383 Wis.2d 192, 914 N.W.2d 151, 2018 WI 84 (Sup. Ct. Wisc., 2018).  This state court opinion contains the following facts and analysis; first, the defendant drank to the point of passing out, meaning he was voluntarily rendered unconscious. A roadside breath test suggested that the defendant had a breath alcohol concentration of 0.24.  The blood test came back slightly lower at 0.222. After the Wisconsin Supreme Court upheld the warrantless blood test, the defendant asked the United States Supreme Court (USSC) to hear the case.

In analyzing if the warrantless blood draw from the unconscious person was constitutionally permissible, the Wisconsin Supreme Court reviewed both prior USSC cases of McNeely and Birchfield and focused on the provisions of the state’s implied consent law. The state court found that the search was permissible because the defendant’s self-induced physical condition did not render Wisconsin’s Implied Consent presumption unreasonable under the totality of circumstances.  This was based on four factors: (1) by exercising the privilege of driving on Wisconsin highways, the defendant’s conduct demonstrated consent to provide breath, blood or urine samples if law enforcement had probable cause to believe that he had operated his vehicle while intoxicated, (2) the arresting officer had probable cause to arrest the defendant for driving while intoxicated, (3) the defendant  chose to drink sufficient alcohol to produce unconsciousness, and; (4) by his conduct, the defendant forfeited the statutory opportunity to assert that he had “withdrawn consent” he previously gave. This opinion suggests that had the driver, prior to becoming unconscious, manifested any intent to withdraw his consent, then the outcome would have been different.

By deciding to hear the case, the USSC has signaled their intention to rule on the constitutionality of the Wisconsin decision/law. This is interesting because there is a split of authority on this issue at the State Court level. In fact, Wisconsin is among 29 states that allow warrantless blood draws from persons who are unconscious.  The remaining states have either not ruled on the issue, or do not allow them.

How Does Drinking on an Empty Stomach Effect My Breath or Blood Test Results?

Generally, when a person drinks on an empty stomach they will reach a higher blood alcohol concentration more quickly, and this higher concentration will last longer, then if the same amount of alcohol is consumed on a full stomach.  This is one reason some people get charged with drunk driving even when they think they are drinking responsibly.  They did not realize the little alcohol they had would put them over the legal limit.  Here’s why this is true:

There are three things that impact a person’s blood alcohol concentration.  These are alcohol absorption, distribution and elimination.  Various factors can potentially impact all three of these factors, and possibly increase a person’s breath test. Generally the absorption of alcohol is a function of food in the stomach, distribution is a function of the amount of water present in various tissues in the body and the elimination of alcohol is largely a function of a person’s prior exposure to alcohol.

Ethanol, which is also called “beverage alcohol” or simply “alcohol,” has many interesting traits and characteristics. Because of Ethanol’s unique molecular structure, it will begin to be absorbed into the blood as soon as it comes into contact with tissues in your body.  So, the absorption of alcohol will begin in your mouth.  However, about 80% of the absorption into your bloodstream will take place in the lower intestine. This means that anything that stands in the way of alcohol getting from your stomach into your small intestine will significantly delay absorption. Certain foods, such as those that are high in fats and proteins, require the most time to digest.  While you are digesting, a muscle between your stomach and your small intestine remains closed.  Then, as you’re done digesting, the muscle opens, and the contents of your stomach pass into the small intestine.  This typically happens over time, meaning smaller amounts of alcohol pass into your bloodstream for each unit of time.  Also, as you are drinking alcohol, some elimination takes place in the stomach, and some alcohol is passing into the blood through the stomach tissues and then is eliminated by the liver. This means there’s less alcohol available to pass into the small intestine when the digestion is complete.

Is Michigan Forensic Lab’s Lack of Blind Testing Cause for Concern?

There are about 30,000 drunk driving arrests in Michigan each year, and of these, about 1/3 of them involve blood tests for alcohol or controlled substances.  All of these blood tests are performed at the Michigan State Police forensic lab. And the blood samples all get to the lab the same way – they are sent by the police after an intoxicated driving arrest. This means everyone at the lab, from the lowest clerical staff, to the forensic scientists and lab supervisors, know that if blood is there, it’s because an (alleged) crime has been committed.  This seems to violate one of the most basic scientific protocols – blinded experiments.

A blinded-experiment is one in which information about the test is withheld to reduce or eliminate bias and subjective influence. Bias can be both unintentional or unconscious and for this reason blinded experiments do not suggest or infer dishonesty.  If dishonesty exists, however, blinded experiments are one way to ferret it out.  While blinded experiments are most often used in medical and psychological settings, blinded experiments also help to measure and increase the integrity of researchers and technicians, such as forensic analysists.

While forensic blood testing is not an “experiment” as such, inserting blinds into the system is one way that scientific credibility and objectivity can be maintained.  For this reason, the Houston Texas Forensic Science Center has begun sliding blind testing into the lab’s workload.  A recent article on the subject from forensicmag.com poses this question:

Trump Plan Would Place Lansing Toxicology Lab Under Federal Control

President Trump’s Department of Justice has proposed a new Office of Forensic Science and Forensic Science Board within the DOJ. This new board would have governing authority over all of Michigan’s forensic labs, including the Toxicology lab located in Lansing.  Nearly all drivers arrested for intoxicated driving and subjected to blood draws currently have their blood tested at this Lansing Toxicology lab.  Consequently, this new change could impact more than 10,000 DUI cases each year in Michigan.

The new Department would be headed by a Director, who would be appointed by the President.  The Director would report to the Attorney General. According to subsection b of the proposal, the mission of the new Forensic Science Division would be: to strengthen and promote the use of forensic science within the judicial system by supporting forensic science service providers, as they continually improve the validity, quality, and practice of forensic science through innovative solutions that focus on research and development, testing and evaluation, technology, information exchange, training, and capacity building for the forensic infrastructure.

One of the duties of the Director will be to work to ensure that appropriate accreditation, certification, standards, methods, best practices, and organizations exist for forensic disciplines.

The Michigan State Police have announced that as many as 4,000 alcohol blood tests are flawed due to improper calibration.  This means that as many as 4000 people arrested for drunk driving in Michigan could be wrongly convicted of a crime they did not commit.

Here’s how the system works: if you are arrested in Michigan for drunk driving, and the police draw your blood to test for alcohol, then the blood sample taken will be sent to a Lansing Toxicology Lab for testing.  The Michigan State Police run this lab that is responsible for alcohol and drug blood testing for the majority of arrested intoxicated drivers.

The process used by the lab is called gas chromatography, and this process requires calibration.  If the calibration is flawed, and it often is, then the blood alcohol or drug level reported by the lab is worthless.

When it comes to drunk driving cases in Michigan, things have changed a lot in recent years.  Pressure from the defense bar, as well as pressure from the scientific community, have both lead to changes in the ways breath and blood tests are determined or reported.  Here is a very short list of changes that have been made:

  1. Calibration curves for blood alcohol determination are now based on NIST traceable standards. Previously, calibration curves where based on calibrators hand made by mixing pure ethanol and distilled water.
  2. Calibration checks on breath testing devices are now done using dry gas rather than wet bath simulation. Previously, the simulator solution was hand made by police officers with very little training.
  3. Blood test results now must be accompanied by a range denoting the amount of inherent uncertainty in the blood test result.
  4. The lower level of detection for THC has been lowered and the reported uncertainty is at least 30% (in either direction).

What happens if you were convicted of drunk driving in Michigan after a change in the scientific method?  Is it possible to challenge that conviction and possibly even have it reversed?

In examining this question, the first thing that you must understand is that you can almost never challenge a drunk driving case on appeal in Michigan if you plead guilty.

Many Michigan DUI lawyers see blood tests as nearly impossible to defend.  This may be due to a lack of knowledge on their part, or it may be due to a belief that jurors see blood tests as irrefutable.  Regardless of the basis this belief is simply not true.  Armed with the right knowledge, blood tests are actually very often easier to defend than are breath test cases.

So, from where does this “right knowledge” come?  Well, it comes primarily from two places.  First, in order to properly defend a DUI case in Michigan involving blood test evidence, a lawyer must seek out specialized training in gas chromatography.  Very few Michigan DUI lawyers actually do this because such training requires a fairly substantial commitment in both time and money.

The Michigan DUI lawyer must also seek out the appropriate information from the laboratory responsible for testing the blood.  In a criminal case, getting information from the testing lab requires that the DUI lawyer utilize a process called discovery.  As will be shown, when properly pursued, this discovery process can yield some remarkable information – information that can be used to win a client’s DUI case. And, this is exactly what happened recently in both Washington and Colorado.

I have written previously in this blog about the unreliability of retrograde extrapolation in drunk driving cases.

This is an important topic because state experts in drunk driving cases often will come into court and try to convince the jury that the driver’s blood alcohol at the time of the driving was higher than at the time of the test.

This practice is very common in OWI Causing Death cases because the blood evidence is usually several hours old.

In Michigan the testing of all blood drawn from people accused of drunk or drugged driving is tested only in this laboratory located near Lansing, Michigan.

Each year, tens of thousands of blood samples are tested in this laboratory, and according to testimony provided at several trials and evidentiary hearings, the State Police Forensic Laboratory in Lansing has never made a mistake.  Is this possible?

It would seem that forensic laboratories across the Country are under siege as the public learns about the shoddy work being done and the abject failure to independently monitor what happens inside these laboratories.  A quick Google search reveals the following articles:

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